WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Wednesday, May 24, 2006

JUST US?

A reader opines:

"Murderous immorality" should be punished, no matter the expense, no matter the offender, and no matter how unpopular the process. What many a poster have ineffectually expressed, because their concerns are frequently masked by their prejudices against prosecutors in general, is that it is equally indefensible when a prosecutor lacks the internal fortitude to be guided by his heart and his brain, acting in tandem. Neither inexperience or naivete have any effect whatsoever on any lawyer's ability to conduct himself in accordance with the highest professional, and human, standards. Mr. Laeser, while arguably unimpeachable as an independent entity within the larger SAO machine, is likely unaware of the oft repeated, legitimate complaints of non-whiny defense attorneys who are frustrated by the unassailable and intractable problem of prosecutors who are unwilling to confront their superiors to suggest that a particular case must be abandoned, or that for humanity's sake, and for the sake of preserving the meaning of "perspective," even a guilty defendant doesn't always merit all available and legally defensible punishments. Sometimes the rationale for mercy is not grounded in caselaw or strategy; sometimes the rationale, if nothing more, is rooted by the weakest of roots, that common thread that makes us all human, that acknowledgment that perfection is unattainable, sin is unavoidable, and punishment can take many forms. Legitimate verbal assaults upon the process take form only when the defenders of the accused among us confront an unbending, unsympathetic, detached machine, one designed and implemented for the sole purpose of meting out punishment to the maximum available under the law. The seekers of justice on the government's side can and should do their jobs with more in mind than that.

Rumpole responds that all day we have been bothered by Mr. Laeser’s comment:

I must be cruel to be kind - my job is to seek Justice without regard to the final result, yours may be over at getting your client acquitted -- even if that is a not what objective Justice would truly mean.

Here is what is troubling us: what is the definition of justice as used by Mr. Laeser if not “the final result”? Let us delve a little into epistemology.

Is not justice an end in and of itself? The problem is when a prosecutor , and especially a prosecutor of the stature and experience of Mr. Laeser does not define justice as an end. We think he is defining justice as the process. And yet, because we are talking about real people with real lives, is not justice what happens to those people?

Justice, from a prosecutor’s standpoint may well end in incarceration or even execution. And we can agree that in many cases (overlooking the hornets nest of executions for the moment) that when that occurs, justice is done.

Would a prosecutor who saw a guilty man go free call that justice? Of course not, and we would agree with that as well.

The next question is whether it is just to incarcerate or execute every guilty person? And the answer is “No” and every prosecutor would or should agree with that.

So “Justice” must be the result and not just the process. And if Mr. Laeser does not agree with that, then we are troubled. Because when the result is not considered, that is when prosecutors start shrugging their shoulders when a person gets incarcerated for 20 years for a third degree felony, or when a person who has lived in the US for 25 years and raised a law abiding family gets deported for a 20 year old adjudication at bond hearings for possession of cocaine.

Justice must include the end result in a case, and if a prosecutor is empowered to seek justice then we believe our current complaints are entirely valid. Prosecutors today are not looking at the end result. They are shrugging their shoulders when the end result of a case is un-just. They are accepting the process as justice and not considering the results. For that matter, many judges espousing the “conservative” point of view are just as guilty. The judge who says “I do not get involved in plea negotiations” is not interested in justice, just the process. The judge who sentences every defendant convicted of a crime to the maximum amount of incarceration (and you robed readers know who you are) is not interested in justice, just the process.

Every time a prosecutor listens to a defense attorney’s explanation and agrees to waive a minimum mandatory, they are seeking justice. Every time a prosecutor listens to a defense attorneys explanation and considers it and does not waive the minimum mandatory, they are seeking justice as well. But every time a prosecutor says “no my job man” and does not consider the individual facts and circumstances of a case and refuses to waive any minimum mandatory, or any time a prosecutor seeks an adjudication on every single case after one withhold, they have abandoned the most important job they have been given: to seek justice.

This is what we really meant to write to Mr. Laeser this afternoon, but with the phone ringing with bill collectors and such, we couldn’t properly express out thoughts.

26 comments:

Abe Laeser
said...

Perhaps I was less than clear. If the case can be proven by application of the laws, then it is the just result. If it cannot be proven, a dismissal, an acquittal, or the refusal to file the charges is a just result. I see the duty of the prosecutor to be the search for lawful justice, without regard to the final result of the case. That is what I meant by "without regard to the final result." While I certainly have prosecuted those who were the most evil, I am more proud of having acquitted more murderers than all of my brethren in the criminal defense bar (perhaps combined) by my refusal to permit an arrest when the proof needed to charge a citizen of such a life-altering charge was simply not sufficient. Many a murderer walks amongst us - perhaps only because it was a 'just result' that no arrest be made without the correct level of proof existing. It is not always simple to tell the detectives that their theory that they will get a confession if there is an arrest is NEVER a valid basis for making that arrest. Maybe that is why the leader of the PBA mutters my name under his breath. There are many days when being a prosecutor is invigorating, when your moral compass is your only guide - without regard to the wrong-headed opinion of others. Perhaps not 'white hats', but certainly able to sleep with a clear conscience.

Yes, Abe prosecutors must follow the rules. If a prosecutor knowingly and intentionally charges someone without sufficient evidence (I say "knowingly and intentionally" because we have to understand that the more experience the prosecutors have, the better equipped they are to determine the quality of their proof. Of course, willful blindness is tantamount to knowledge and intent in my book) or "cheats" to win, he or she should be fired immediately. A true prosecutor ALWAYS does what he or she thinks is right and follows the rules, even if it means that a guilty person walks. Thus, the prosecutor can ensure a process that is appropriate and ethical for our community (including the offender, whom the prosecutor also represents, albiet not in the classical legal sense).

However, when a child molester or murderer avoids prosecution that is not true justice. Yes, when prosecutors refrain from approving an arrest or drop charges because of insufficient evidence or police misconduct they do their jobs and should be commended. And yes, the result is appropriate. But, it's not all about you (or the other prosecutors) Abe (don't be so egocentric). When a murderer or child molester goes free the offender is not punished, the victim obtains no redress and, we, as members of the community, often pay a significant price. That's not justice.

In a perfect world, with true, perfect justice, we'd have a fair process that achieves appropriate results: it would weed out the innocent, provide appropriate punishment/rehabilitation for offenders, and make victims whole.

No, we don't live in a perfect world. Yes, this behooves us ALL to do what we can. Our system isn't perfect, but it's the best there is and we all play important roles. But, that doesn't mean we throw our hands up and call it justice when offenders escape prosecution.

PS---Rump, you said that "The judge who says “I do not get involved in plea negotiations” is not interested in justice, just the process." I disagree. Case law greatly restricts a judge's ability to participate in negotiations and give defendants meaningful incentives to plea. Just ask Judge Glick. A classic example of "be careful what you wish for."

For goodness sake, this guy Abe thinks he is God's gift to the criminal justice system. Please. The problem, of course, is that every prosecutor believes as Abe does -- that they are doing God's work; that criminal defense lawyers are there to thwart the system; that the people they prosecute are "evil" and certainly guilty. Abe, don't worry, we criminal defense lawyers sleep very well at night, knowing we keep the likes of you in check, knowing that we do in fact get guilty people off, but also knowing that when we do that we are fighting for rights of the innocent as well. By the way, did you have to go to "legal" to get help with your post?

As a former prosecutor what continues to anger me about you rump is that your arguments are constantly a moving target shifting to what you think is fashionable instead what is logically consistent. Everyone agrees that an ASA must follow the law no matter if the guilty go free. There should be no gray areas on this. if the cops made a bad stop and the evidence should be suppressed that is what must happen. If they disregard a suspects miranda rights confession is gone. Mr. Laeser makes a very good point when he explains that often ASA's acquit people by not givng the police the power to make arrests on flimsy proof or shoddy detective work. you would never understand how often this happens having never worked as an asa. So everyone agrees that an asa must follow the law no matter how bad the result is in terms of a guilty man going free. How can you then go around and scream that ASA's are mindless robots when they simply follow the law with regard to sentencing. The legislature makes the laws and ASA's have to follow those laws as well as the fourth fifth and sixth amendment. sorry I know that as Reagan once said "facts are inconvienent" but those are the facts. This is not to say that there are not circumstances in which a min man should be waived and a gort should not be sentenced to the max. But the presumption amongst the criminal defense cognoscenti is that an asa who says "no i dont see any compelling reason to waive the PRRP, gort Statute" is per se an mindless, heartless and cruel nazi because they want to lock up a buglar for 30 years. Maybe if instead of the defense bar using your money to buy "a continuance down the road" from the local judiciary(thank you Judge Postman for having the honesty to admit what we all know) you should be pooling your funds to lobby the legislature to not pass these laws that you are so morally offended by? that will never hapen becuase in the end you care more about some judge giving your clients a bond so they can pay you than you do about stopping an injustice which can occur with Minimum Mandatory sentences.

Many of us have lobbied the politicos on topics such as the MinMans. However, it's hard to convince a Rep. to take a position that is "soft" on crime. They want to look like they're "tough on crime" to the people they supposedly represent who don't fully understand all the arguments that have been put forth above and who want to see someone being punished for stealing their lawn tools. (without knowing it may be 40 years.)

the HO, HVO, PERP, GORT and might I say HMO, since we seem to be stuck with shortening the statutue, should be applied with caution. I agree that the repeat offenders need to be put away for a long time, but for what crime? every crime, no matter what every asa thinks, is not the same. Some crimes are worse than others. at least if we start agreeing with that premise, we can apply those min-man sentences fairly. not every crime deserves a prison sentence, no matter what the person's background is. I felt that way, that's why I no longer work with the State Attorney's office.

Let me lighten things up a bit... I found out why Josie Valez left the FACDL party in such a huff. After being ignored by everyone she approached, she was confronted by our very own Brian Tanennbaum. He then informed her that since she did not RSVP to the party that she had to leave. Nice work Brian.

To be accurate, Ms. Velis and her husband showed up at the sold out FACDL-Miami banquet without having bought a ticket or RSVP'd.

All judicial candidates that RSVP'd, bought their tickets and some even bought ads in the journal.

When I saw Ms. Velis and her husband, I approached her husband and advised that the banquet was sold out and that to remain at the cocktail party (which cost a great deal of money) they would have to buy tickets.

Mr. Velis responded "this is a ticketed event?" I don't know what about the event being held at The Biltmore with three-hundred people dressed in black-tie would make anyone think otherwise, but I responded "yes."

Mr. Velis responded "we just came to say 'hi'."

I understand that they then inquired of others whether they could sit at their tables, and were not seen when the dinner began.

Out of common courtesy, for any person who shows up and finds themselves in an awkward situation (even if they are partially to blame), you should of stepped up and done something welcoming. Instead, you acted like the majority of kids in high school who just stand by and watch some kid that no one likes get picked on by a bully. Should be proud.

Who ever coined the phrase that prosecution work is "God's Work?" I would really like to know since every prosecutor that leaves the State Attorney's office includes that phrase in their happy hour farewell addresses.

That phrase is akin to blasphemy. Do ASAs seriously consider themselves God's minions? Come on. What is so holy about putting a cracked-out burglar in prison for 30 years because he is a career criminal? Where is the humility, mercy and forgiveness that is encouraged in the beatitudes in that outcome? I’m no holy roller, but as a former ASA I never was able to rectify those two notions. Doing your best for victims and the community is reason enough your head high as a prosecutor, but equating being a prosecutor to doing God’s work is just incredibly arrogant.

"Everyone agrees that an ASA must follow the law no matter if the guilty go free." I don't.

I am a historian. Governments are fragile. They may seem stable, but poof . . . bloody revolution. I am also a father. I don't want bloody revolution.

The law must appear to be fair, and sometimes the appearance is more important than fairness.

If a prosecutor must always "follow the law," whatever that means, then shouldn't we replace them with robots? Rather than following the law, I would like a prosecutor to be seeking justice; the end result, not the process.

Someone whined: [Brian Tannebaum] acted like the majority of kids in high school who just stand by and watch some kid that no one likes get picked on by a bully

Where do you get that description of BT's behavior? In his own words, he told the couple the sit-down banquet was sold out but that they could buy a ticket - like everyone else - and stay for the cocktail party. That sounds emminently reasonable.

If you want to accuse BT of mean spirited comments, find a first-person witness to quote.

Thank you 1:50 for updating my report on the FACDL party - reference candidate Velis. You may remember that I first reporteed that Josie V., (it is Velis - not Valez), showed up to the cocktail hour and left shortly thereafter, quickly and quietly.

To further update the point, actually, not only did Ms. Velis not RSVP, she also did not pay for the event. All other candidates that showed up did RSVP and did pay in advance.

3:35..........are you really disagreeing that an ASA must follow the law no matter if the guilty go free? Please tell me you're not a prosecutor.

Any prosecutor who truly understands his or her obligations knows that he or she cannot violate the law to achieve what they believe is a desireable result. Stated differently, the ends don't justify illegal means.

Abe has always been a legitimate guy who understood that as an ethical prosecutor, his duty is to "no action" or "nolle prosse" a case that cannot be proven by the evidence, even if he personally believed that the suspect committed the offense (notwithstanding his "Darth Vader" nickname).

Let's hope that KFR has him teach a course in "prosecutor's ethics" to the office each year because some of his fellow prosecutors just don't get it.

Where is the Defense Bar involvment in this Velis cocktail scandal? There's a rant missing around here. This is an outrage! How dare someone attempt to make a person or nicely dressed couple follow rules! You know who was 'just following orders' don't you? Everybody deserves a free lunch...er cocktail...er dinner.

All of you from the Defense Bar should have offered to give up a seat at your own table for that couple shouldn't you? Enforcing RSVP and Ticketing Guidlines sounds mindless and robotic.

Whatever happened to party-crasher's rights? So fair, so just, so honorable...as long as it's not your dinner they're invading I guess.